This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Debra Albach,


Filed March 13, 2007

Affirmed in part and reversed in part

Stoneburner, Judge


Dodge County District Court

File No. K404204


Lori Swanson, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Paul Kiltinen, Dodge County Attorney, Dodge County Courthouse, 22 Sixth Street East, Mantorville, MN 55955-2220 (for respondent)


John M. Stuart, Minnesota Public Defender, Lawrence Hammerling, Deputy State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges her convictions of first-degree manufacture of methamphetamine; first-degree conspiracy to manufacture methamphetamine; two counts of transport of anhydrous ammonia in an unauthorized container, and one count of fifth-degree controlled substance crime, arguing that (1) the district court erred in denying her motion to suppress evidence obtained in a warranted search; (2) the district court abused its discretion at trial by admitting a recording of a telephone call; (3) the evidence was insufficient to support the anhydrous ammonia convictions; (4) the verdict was not unanimous regarding the anhydrous ammonia charges; and (5) prosecutorial misconduct related to discovery entitles her to a new trial.  Because the evidence is insufficient to support the anhydrous ammonia convictions, we reverse those convictions.  Because there was sufficient evidence to support a nighttime search warrant, because any error in admission of the tape recording was harmless, and because the prosecutor’s alleged discovery violations do not warrant reversal, we otherwise affirm.



            Appellant Debra Gene Albachwas staying in a mobile home owned by Charles Clark when members of the Southeast Minnesota Narcotics Task Force executed a search warrant at about 1:24 a.m. on Monday, April 13, 2004.  The law enforcement officers encountered methamphetamine manufacture in progress in the bathroom of the mobile home.  Albach, Clark, and two other people found in the mobile home, Joshua Jacobson and D.R.S., were arrested.  The officers photographed, seized, and cataloged the various items that they suspected to be related to methamphetamine manufacture.  Samples of hazardous substances were taken for later testing, and the hazardous material was destroyed as required by law.

            Albach was charged with first-degree manufacture of methamphetamine; first-degree conspiracy to manufacture methamphetamine; four counts of transport of anhydrous ammonia in an unauthorized container; and one count of fifth-degree possession of a controlled substance.  Clark agreed to give a statement and testify at Albach’s trial in exchange for his plea to reduced charges.  Clark’s statement was not admitted at Albach’s trial, but Clark, relying heavily on his statement to refresh his recollection, testified that (1) Albach had borrowed the hotplate used in the manufacturing process from the neighbors; (2) he saw Albach hand a coffee grinder used in the manufacturing process to Shane Rose, who had come to Clark’s mobile home with Jacobson and D.R.S. to manufacture methamphetamine; and (3) Albach was in the area of the mobile home where the methamphetamine was being manufactured during the time of manufacture.

            There was physical evidence that the coffee grinder was used to grind pills necessary to the manufacture of methamphetamine and that the hotplate was used to cook a mixture necessary to the manufacture of methamphetamine in Clark’s bathroom.  Several containers found in the mobile home tested highly positive for the presence of ammonia.  The high test results and the fact that only anhydrous (rather than household) ammonia is used in the manufacture of methamphetamine was circumstantial evidence that the liquid in the containers was a mixture containing anhydrous ammonia, which is a regulated substance.  None of the containers was authorized for the legal transportation of anhydrous ammonia.

            Albach testified that Rose, Jacobson, and D.R.S. came to Clark’s trailer with a bag of equipment announcing that they were going to “produce some stuff,” which Albach suspected was methamphetamine.  Albach stated that Rose, Jacobson, and D.R.S. left with the bag of equipment and that she went to sleep watching television in the living room of the mobile home, which is at the opposite end of the mobile home from the bathroom.  Albach testified that she did not know that Jacobson and D.R.S. had returned or that methamphetamine was being manufactured in the bathroom until the officers executed the search warrant and woke her up.  Albach denied knowing that Clark had a coffee grinder and denied handing a coffee grinder to Rose.  Albach admitted that she borrowed a hotplate from Clark’s neighbors, but she testified that it was for making pancakes for breakfast.  She denied carrying the hotplate into the bathroom.  Albach denied knowing how to make methamphetamine and denied that she had ever stated that she knew how to make methamphetamine.

            Over defense objections, the district court admitted redacted portions of a recorded telephone call Albach made from the jail.  The recording was introduced by the state on rebuttal to impeach Albach’s testimony elicited on cross-examination that she did not know how to make methamphetamine and had never told anyone that she did.  In the recording, which was redacted by agreement of counsel, Albach makes a statement that people only wanted her around because she knew how to “make dope” or “get dope.”  The recording also contains statements by Albach that she was “set up.”  At trial, the recording was played for the jury when it was introduced and at the beginning of the prosecutor’s closing argument.  By request of the jury, the recording was played to the jury twice during their deliberation.

            During the trial, counsel for Albach repeatedly moved for a mistrial or other relief for asserted discovery violations by the prosecutor characterized on appeal as prosecutorial misconduct.  The district court did not specifically rule on the alleged discovery violations, but denied the motions for mistrial and other relief.  The jury convicted Albach on all counts.  She was sentenced, and this appeal followed.



I.          Nighttime warrant

            We first address Albach’s argument that the district court erred in denying her motion to suppress evidence obtained during the search because the warrant application did not contain a sufficient basis for a nighttime warrant.  On appeal from a pretrial order on a motion to suppress evidence, “we independently review the facts and determine, as a matter of law, whether the district court erred in its ruling.”  State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).  “The district court’s factual findings are reviewed under the clearly erroneous standard, but we review the district court’s legal determinations de novo.”  Id.  We defer to the issuing judge’s determination of probable cause for a search warrant, and the determination “must be based on the factual allegations contained in the affidavit in support of the warrant application and the reasonable inferences to be drawn therefrom.”  Id. at 927-28 (quotation omitted).

            Minn. Stat. § 626.14 (2002), requires that search warrants be executed between “7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.”

            The supreme court has noted that “[a]lthough the general rule against nighttime searches is statutory, it may also have a constitutional dimension.”  State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978), overruled on other grounds by Graza v. State, 632 N.W.2d 633, 638 n.1 (Minn. 2001).[1]  Underlying both the statutory rule and a suggested constitutionally based rule “is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.”  Id. at 839-40.  Recently, the supreme court held “that before a nighttime search is authorized under section 626.14 the application for the warrant must establish at least a reasonable suspicion that a nighttime search is necessary to preserve evidence or to protect officer or public safety.”  Bourke, 718 N.W.2d at 927.

            In this case, Officer Gunderson applied for a search warrant at approximately 9:00 p.m. on Sunday, April 12, 2004.  The warrant application stated that a nighttime search was necessary “[t]o [p]revent loss or destruction of [e]vidence.”  It is undisputed that this “boilerplate” language is insufficient, by itself, to support a nighttime search.

            The application also stated that on April 11, 2004, Officer Gunderson learned from a confidential reliable informant that Albach, in conversation with others, had said that methamphetamine manufacture was going to occur in the woods by the trailer court and in the residence at Lot #8 or in Clark’s residence on Sunday, April 12, or Monday, April 13.  Albach stated that “they have the items ready to manufacture.”  The application also stated that “[i]t is known to affiant that chemicals involved with manufacture of [m]ethamphetamine are hazardous and extremely dangerous . . . [and] can not be stored in local facilities and must be properly disposed of.”

            Officer Gunderson testified at the omnibus hearing that he and another officer had been conducting surveillance of Clark’s mobile home immediately before he applied for the search warrant and that he had observed several people coming and going from the mobile home carrying items from vehicles and from the woods surrounding the mobile home.  But Officer Gunderson did not include information about this recent surveillance in the application for the search warrant.  In denying the motion to suppress, the district court appears to have based its decision, in part, on its understanding that this information about the most recent surveillance was contained in the application.  But even without information about the recent surveillance, we conclude that, taken as a whole, the application was sufficient to support a nighttime search because it alerted the magistrate that manufacture of methamphetamine was imminent and that dangerous chemicals, constituting a threat to public safety, were known to be on the premises.  We conclude that the district court did not err in denying Albach’s motion to suppress based on the nighttime search.

II.        Admission of recording of phone call

            Albach argues that the district court erred in admitting a partially redacted recording of a telephone call she allegedly made from the Steele County jail, because the foundation was inadequate, much of the recording was irrelevant, and it was more prejudicial than probative.  We find no merit in Albach’s claims with regard to relevance and prejudice of the portions of the recording played to the jury because Albach reached an agreement with the prosecutor concerning how the lengthy conversation should be redacted to preserve the parts of the conversation that were exculpatory.  Because Albach could have redacted the portions of the conversation she now specifically objects to, we conclude she has waived those claims on appeal.  Albach’s challenge to foundation, however, is valid.

            “The district court has broad discretion over the admissibility of evidence, and the standard of review for the adequacy of foundation with respect to the admission of evidence is abuse of discretion.”  Turnage v. State, 708 N.W.2d 535, 542 (Minn. 2006).  “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Minn. R. Evid. 901(a).

            There are seven foundational elements that must be established before a tape recording can be admitted: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions and deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.


Turnage, 708 N.W.2d at 542 (quoting Furlev Sales & Assocs. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 27 n.9 (Minn. 1982)).  In Turnage, the supreme court held that the testimony of the technician, who was responsible for recording telephone conversations in the Ramsey County Workhouse and responsible for making the tape of the telephone conversation that was admitted, established adequate foundation for admission of the recording where the technician testified about how the telephone conversation was recorded and how the copies were made.  Id. at 542-43.  Because the Turnage opinion was released after the date of Albach’s trial, the participants in Albach’s trial did not have the benefit of this decision.

            In Albach’s case, the state relied on information in the recording itself and the testimony of Officer Gunderson to lay foundation for admission of the recording.  Officer Gunderson’s testimony was based primarily on what he had been told by Steele County Jail Administrator, Dan Schember, who was the person responsible for recording the conversations and making a disk of six telephone conversations purportedly initiated by Albach from the Steele County jail, where she was detained pending trial in this matter.

            After a thorough review of the record in this case, we conclude that the state failed to establish adequate foundation for admission of the recording.  We conclude, on this record, that the recording itself demonstrates that the recording device was capable of taking testimony and that the operator was competent.[2]  We also conclude that there is adequate evidence of the identification of Albach as the female recorded and that her statements on the record were voluntarily made.[3]  But there is insufficient evidence to establish the required authenticity and correctness of the recording; the absence of changes, additions, or deletions to the copies of the recording; or how the recording was preserved.

When a party offers evidence, he must first qualify his witness to speak as to the subject matter.

            . . . .

[T]he testimony of one claiming to have knowledge has constantly been rejected, when it appeared that he lacked personal observation.


            Clearly, one who has no knowledge of a fact except what another has told him cannot satisfy the present requirement of knowledge from observation.


Elsberry v. Great N. Ry. Co., 265 Minn. 352, 356-57, 121 N.W.2d 716, 719-20 (1963) (affirming exclusion of offered evidence for lack of foundation) (quotations omitted).  In this case, Officer Gunderson lacked the requisite personal knowledge to authenticate the recording; establish that changes, additions, or deletions were not made; and show how the recording was preserved before obtaining the disk from Schember.  Because the state failed to establish the appropriate foundation, the district court erred in admitting the recording.

            The state argues that if the admission of the recording was error, the error was harmless.  We agree.  See Furlev, 325 N.W.2d at 28 (holding that admission of a tape-recorded conversation without proper foundation was harmless error where the conversation was merely cumulative of other testimony).

            The “harmless error analysis is more appropriately termed ‘harmless error impact analysis,’ because it is the effect of the error on the verdict that the appellate court considers.”  Townsend v. State, 646 N.W.2d 218, 223 (Minn. 2002) (citing State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997)).

When determining whether the jury’s verdict was surely unattributable to an error, we examine the record as a whole.  In doing so, we consider the manner in which the evidence was presented, whether the evidence was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defense.  Evidence of the defendant’s guilt is also a relevant consideration, but it is not the sole factor.


State v. Wright, 726 N.W.2d 464, 476 (Minn. 2007).

            In this case, the state initially sought to admit only a small portion of one of six recorded conversations between Albach and “Rob” to impeach Albach’s statement that she did not know how to manufacture methamphetamine and did not tell anyone that she did.  Albach, while continuing to object to the admission of any portion of the recording, argued that if any portion of the recording was going to be admitted, Albach’s exculpatory statements should be retained.  Albach’s counsel and the prosecutor then stipulated to the redacted version of the conversation that was admitted.  On appeal, Albach objects to the portion of the tape in which she and “Rob” discussed retaliation against the informant and the portion in which she asks “Rob” to get her clothes from the Bakers and talks about her homelessness and need for money.  But, as noted above, Albach stipulated to admission of those portions of the tape, thereby waiving any objection to admission of those particular portions of the tape.  Because Albach succeeded in having exculpatory statements from the tape admitted, the manner of admission was fair and the persuasiveness was fairly balanced between the parties, if not more favorable to Albach.

            The prosecutor led his closing argument by replaying the recording and referred to the recording to raise questions about Albach’s credibility.  There is no record of why the jury asked to hear the recording twice during deliberation.  And although the request indicates that the jury found something in the recording significant enough to review, the jury may have been focusing on Albach’s recorded exculpatory statements.  Nothing in the recording was directly relevant to prove Albach’s participation in the crimes charged.  To the extent that the tape impeached Albach’s testimony, it was cumulative of impeachment evidence already in the record.  Based on the record as a whole, including direct evidence of Albach’s guilt, we conclude that the guilty verdicts were surely unattributable to the error in admitting the recording and that the error is harmless beyond a reasonable doubt.

III.       Anhydrous ammonia convictions


            At trial, there was evidence that at least seven different containers located during the search of Clark’s premises tested positive for ammonia.  Albach’s convictions of illegally transporting anhydrous ammonia were based on two containers found under Clark’s kitchen sink.  Albach challenges the sufficiency of evidence to support these convictions and also argues that the verdict may not have been unanimous concerning these convictions.

            In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  “[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant that there is no reasonable inference other than guilt.  Id.

            “A person may not . . . transport anhydrous ammonia in a container that is not designed, constructed, maintained, and authorized to transport anhydrous ammonia.”  Minn. Stat. § 18C.201, subd. 6(a)(2) (2002).  In this case, the jury was instructed as follows on the charges of illegal transport of anhydrous ammonia:

            The statutes of Minnesota provide that whoever transports anhydrous ammonia in a container that is not designed, constructed, maintained, and authorized to transport anhydrous ammonia is guilty of a crime.


            The elements of unlawful anhydrous ammonia containment are:


            First, the defendant unlawfully transported anhydrous ammonia in a container.


            Second, the defendant’s act took place on or about April 13, 2004 in Dodge County.


            If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty.  If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.


            The parties agree that “transport” means more than just possessing anhydrous ammonia in an unauthorized container because possession was separately criminalized under Minn. Stat. § 18C.201, subd. 6(a)(1).  Albach argues that “transport” logically means movement on the public roads, noting that the statute is in the chapter of the statutes devoted to agriculture and within the section of the chapter devoted to fertilizer, and asserting that the statute is designed to regulate movement that places the public at risk.  The state argues that because anhydrous ammonia is a combustible chemical and any movement in an unauthorized container, however slight, is dangerous, common sense supports prohibition on any such movement.

            What we find more significant in this case than an exact delineation of the type of movement necessary to constitute transporting under the statute, is the complete lack of any evidence linking Albach to the presence of or any movement of the two containers located under Clark’s kitchen sink.  The state argues that it was reasonable for the jury to infer that the ammonia did not spontaneously appear under Clark’s sink and that it had to be carried from somewhere, and that the jury could logically infer that Albach aided and abetted such movement.  We disagree.  No evidence links any of the individuals involved in the manufacture of methamphetamine to the two containers of ammonia found under Clark’s sink.  We hold that, as a matter of law, the evidence is insufficient to support Albach’s convictions of illegally transporting or aiding and abetting the transport of anhydrous ammonia, and we reverse those convictions.  Because the evidence is insufficient to support the convictions, we do not reach Albach’s challenge to the unanimity of the verdict on these charges.

IV.       Discovery violations

            Albach’s final claim is that the prosecutor committed misconduct through discovery violations.  “Trial courts have broad discretion in imposing sanctions for violations of the discovery rules.”  State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998).  The appellate court will not overturn the district court’s ruling absent a clear abuse of discretion.  Id.

            Albach specifically asserts that the prosecutor intentionally failed to timely provide a witness list, failed to disclose a supplemental police report, and failed to disclose a current property-room-inventory sheet.  Albach raised each of these issues in the district court, but the district court never ruled that the state violated discovery rules or committed misconduct.  Regarding the supplemental police report, the district court directed the prosecutor to “look into” any reports that had not been produced.  Later, the prosecutor explained to the district court that his staff had confused the missing report with one already disclosed because the documents were so similar.

            When it became apparent during Officer Gunderson’s testimony that a page of the property-room log had not been disclosed to Albach, Albach moved for a mistrial due to a material and prejudicial breach of disclosure.  The district court denied the motion, but noted that it was troubled by Officer Gunderson having reports that conflicted with what was sent to the defense.  Albach, without arguing specifically how the discovery lapses resulted in prejudice, asks this court to order a new trial without a showing of prejudice because the prosecutor’s conduct was “egregious.”  Although we do not condone the prosecutor’s actions or attitude regarding discovery, we do not find the conduct so egregious as to warrant the sanction requested.

            Albach also asserts that the prosecutor’s consistent response to discovery concerns was to demean the defense lawyer and that this court should reverse as an exercise of supervisory authority.  The defense in this case was zealous, and in reviewing the transcript, this court noted unwarranted and unnecessary verbal attacks on defense counsel by the prosecution outside of the presence of the jury.  The district court on several occasions intervened and requested both counsel to stop unnecessary comments.  But the outcome of the case cannot be attributed to attorney rudeness, and the prosecutor’s conduct does not require a new trial.  And, generally, we decline to exercise supervisory powers.  See State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995) (stating that “[a]s an intermediate appellate court, we decline to exercise supervisory powers reserved to this state’s supreme court”), review denied (Minn. Sept. 20, 1995).

            Affirmed in part and reversed in part.

[1] In Graza v. State, the supreme court stated, “To the extent Lien can be understood to authorize an unannounced entry on a showing only that the premises were used for drug trafficking, it is overruled.” 632 N.W.2d 633, 638 n.1 (Minn. 2001).

[2] See Matter of Gonzales, 456 N.W.2d 724, 728 (Minn. App. 1990) (stating that the recording itself made it evident that the recording device worked properly).

[3] Regarding identity, voice identification is sufficient to establish the identity of a caller, and identity can also be established by the subject matter itself.  Sauber v. Northland Ins. Co., 251 Minn. 237, 243, 87 N.W.2d 591, 596 (1958).  Regarding voluntariness, we note that each conversation is preceded by a recorded warning that the call may be monitored or recorded.